Dateline: January, 2022, Issue 1

What are effective defense responses to the plaintiff's damages request?

Numerous studies have shown that jurors' damages decisions are strongly affected by the damages amount suggested by a plaintiff's attorney, independent of the strength of the actual evidence, a psychological effect known as "anchoring". Simply put, the more money asked, the more jurors award, even when the damages anchors suggested by plaintiff attorneys are extreme or absurdly high.

Campbell and colleagues (2016) investigated whether civil defendants can effectively rebut a damages anchor proposed by a plaintiff's attorney. 776 mock jurors watched a video of a medical malpractice trial. Half of the jurors watched a trial in which the plaintiff's attorney requested $250,000 in non-economic damages; the other half watched the same trial except $5 million was requested for non-economic damages. Mock jurors then saw the defense attorney make one of three responses: (1) offering a counter-anchor that, if any damages are awarded, they should only be $50,000; (2) ignoring the plaintiff's specific damages request; or (3) attacking the plaintiff's specific damages request as outrageous. Mock jurors then rendered decisions on both liability and damages.

The plaintiff's damages anchor had a very powerful effect on the amount of damages that individual jurors awarded. The case value jumped 813% as the plaintiff's request increased from $250,000 to $5 million. When $250,000 was requested, $225,765 was awarded on average by individual jurors. When $5 million was requested for the very same case facts, $1,859,137 was awarded on average by individual jurors. Liability decisions by individual jurors were unaffected by the plaintiff's damages anchor, with the plaintiff winning liability 41% of the time whether asking for $250,000 or $5 million. Different defense responses of countering, ignoring or attacking the plaintiff's damages request had no effect on individual jurors' liability decisions or damages awards.

When jurors were placed into simulated juries, the defense countering the plaintiff's damages request was a significantly better defense response than attacking or ignoring the request. For the high damages request of $5 million, a defense counter-anchor had no effect on simulated juries' liability decisions, but reduced damages by 43% more than did attacking the request as outrageous. For the low damages request of $250,000, a defense counter-anchor had no effect on simulated juries' damages awards, but modestly maximized the defendant's chance to win on liability as compared to ignoring the damages request (which reduced the defense liability win rate by 6.6%) or attacking the request (which reduced the defense liability win rate by another 8.1%).

Campbell and colleagues conclude that providing a specific and high damages anchor is a powerful and effective strategy for plaintiffs. Plaintiffs are able to dramatically increase potential recovery by simply requesting more money. For defendants, (a) the countering of a plaintiff's damages anchor is not viewed by jurors as a concession (as countering has no negative effect when the plaintiff's damages anchor is high and is the best strategy for winning liability when the plaintiff's damages anchor is low), (b) attacking a plaintiff's damages anchor does not help (when faced with a high plaintiff damages anchor) and can backfire (when faced with a low anchor), and (c) ignoring the plaintiff's damages anchor is a less effective defense response than offering a counter-anchor but is superior to attacking the request.

Source  Campbell, J., Chao, B., Robertson, C. & Yokum, D.V. (2016). Countering the plaintiff's anchor: Jury simulations to evaluate damages arguments. Iowa Law Review, 101(2), pp. 543-571.